Temporary ban on delivery of controversial newspaper under review

Procedures have begun for Board of Review hearings over a controversial newspaper that began appearing in mailboxes across Toronto last year.

In June 2016, Canada Post was ordered by the federal government to prohibit delivery of Your Ward News, a publication that sparked allegations of racism, bigotry, anti-Semitism and hate. Judy Foote, the minister responsible for Canada Post, issued the interim prohibitory order under the Canada Post Corporation Act.

James Sears, the publication’s editor-in-chief appealed that order and, as procedure under the Act dictates, Foote appointed a Board of Review consisting of three members to consider whether Canada Post should legally distribute the paper.

Over the last few months, members of the public had the opportunity to make submissions in the hopes of participating in the review.

It has been a divided issue encompassing a debate between proponents of freedom of speech and opponents of alleged hate speech. Here’s what some players on both sides had to say as the proceedings began Tuesday.

IN SUPPORT OF DISTRIBUTION:

Paul Fromm, director of the Canadian Association for Free Expression:

“This is an incredibly arbitrary and ruthless power all because some politically-correct people didn’t like what’s in Your Ward News. Tough. People should have the right to publish what they want. If people don’t want to read, there’s a garbage can. There’s a blue box. There’s the bottom of the birdcage. What we are seeing is an effort by people who don’t like the content for whatever reason to say, ‘I don’t like it and you can’t read it and you can’t send it out.’ And that’s what this battle is all about…..We used to be a country where we said, ‘Look, I don’t agree with you. But you’ve got a right to your opinion. You’ve got a right to say it. That’s what Your Ward News is.”

AGAINST DISTRIBUTION:

Sara Lefton, vice president of the Centre for Israel and Jewish Affairs

“This is pure and simple hate. When people are getting Your Ward News in the mail and they’re getting it at their doorstep, they feel unsafe, they feel targeted in their homes. There’s no place for hate like this in Canada, and we need the decision to stand so hate like this will not continue … When there are pieces of clear discrimination and hate speech that are being disseminated en masse to people’s doorsteps there should be no place for that, and that shouldn’t be allowed.”

IN SUPPORT OF DISTRIBUTION:

Raychyl Whyte, Board of Review applicant

“Someone should still have the right to freedom of speech. I myself know what it is like to have public humiliation, public shame due to libelous comments and presumptions made about me. I know all too well what that is like. However, I still support people’s rights to have their own independent free speech.”

AGAINST DISTRIBUTION:

“For the people that have been victimized by this so-called newspaper, that’s a problem. There’s Holocaust denial, there’s propagation of rape, there’s use of the N-word. There’s racism on every single page. It is the most disgusting thing. I’ve been doing this stuff for 30 years. I’ve never seen a publication like this distributed in Canada as widely as this one is and certainly not one distributed by Canada Post … We need to say Canada Post should not be distributing hatred.”

IN SUPPORT OF DISTRIBUTION:

Emilie Taman, co-counsel for James Sears

“It’s not something that I’m necessarily per se excited to be reading about, but I do believe in the constitutional right to free speech, and it’s one that I think is very important to be defended at every opportunity.”

AGAINST DISTRIBUTION:

Derek Richmond, Canadian Union of Postal Workers

“Me, personally, I didn’t deliver [Your Ward News] but many of our letter carriers did. A lot of them are very diverse and had to go through the whole day viewing swastikas, viewing hate, viewing sexist material, rape culture. It really affected a lot of our letter carriers.”

A TRUE CANADIAN VALUE

Prime Minister Trudeau received plaudits when, on a recent state visit to China, he boasted of Canada’s commitment to free expression, which he presented as a “true Canadian value”. The prime minister exalted “a diversity of ideas, and the free ability to express them” because freedom, he said, is what drives positive change. Perhaps he and others had forgotten that as leader of the Opposition he prohibited anyone opposed to abortion from running for federal office for the Liberal Party. If that was 2014 and this is 2016, there is more. On May 26, 2016, the Minister of Public Services issued an order banning a publication from Canada Post.

Minister Foote’s Interim Prohibitory Order prohibits James Sears (and his agents) from using Canada’s national mail service. On its face, the Order draws no distinction between sending a postcard, paying a bill, and circulating Your Ward News, the publication targeted by the Minister. The authority for that Order is found in s.43, a little known and rarely used provision of the Canada Post Corporation Act (“Canada Post Act”), which allows the Minister to halt the delivery of mail that is connected to the commission of offences.

Under the Canada Post Act, a s.43 Order is presumptively final within ten days. Once the Interim Order is made there is no further process, and the Minister has no burden to justify a ban. In just ten days, the Minister can permanently prohibit a person from using Canada’s mail delivery service without her consent.

It is no secret that Canada Post can be used for a range of criminal purposes. In 2013, the National Post reported that the mail service routinely transports a variety of contraband and illegal goods, including guns, drugs, and even a rocket launcher. This summer, three venomous snakes – mountain pit vipers – were found in a package mailed from China. These revelations may make Canada Post a more dangerous place than most imagine. Spring of 2016 is when the delivery of Your Ward News became dangerous enough to attract the sanction of a prior restraint order.

Presumably the Minister is not interested in Mr. Sears’s postcards or personal mail. Rather, her letter makes clear that the target is Your Ward News and that the purpose of the Order is to take the publication out of circulation.

Your Ward News is reportedly delivered by Canada Post to approximately 305,000 addresses in Toronto, and is self-styled as “the world’s largest anti-Marxist publication”. Admittedly, many would describe it as scurrilous. Proudly and self-righteously offensive, Your Ward News aims at and succeeds in being as offensive as possible from cover to cover. Its pages glorify Hitler, pillory equality and diversity values, insult visible minorities and other communities, trade in distasteful and marginal sexual content, and vilify public and news figures by name. James Sears is the editor in chief of this publication, whose back issues, incidentally, can be found online.

Householders and postal carriers have complained that Your Ward News intrudes into their safe psychological and physical space. Before the Minister took action, Toronto police had investigated and decided against laying charges under the Criminal Code’s hate propaganda provisions. Meanwhile, in a bid to have delivery of the publication stopped, human rights litigant Richard Warman appealed directly to Minister Foote and Canada Post Corp. In March 2016, Canada Post’s general counsel told Warman that “it is not open to Canada Post to censor the mail”.

Two months later, the Minister exercised her power under s.43 to do just that. Though Canada Post cannot stop Your Ward News from publishing, banning its circulation is censorship just the same, as the corporation’s general counsel acknowledged. Your Ward News is not dangerous like a gun, rocket launcher or snake, but has been banned because it is considered offensive and harmful.

The Minister’s Interim Prohibitory Order is insidious for two reasons: first, it constitutes a prior restraint; and second, it bans Your Ward News from Canada Post without due process of law. On its face, the Order bans Mr. Sears (and colleagues) from sending any mail, and for that reason alone is overbroad and disproportionate. More to the point, banning a publication in advance, on the basis of assumptions about what future issues might contain, is the most draconian step a state can take to censor unwelcome views.

Essentially, prior restraint attaches a presumption of guilt to words or a publication that are not yet written. This is plainly antithetical to the Charter’s guarantee of expressive freedom, which is based on the opposite principle that expressive freedom is presumptively protected, or innocent in nature, until the contrary is proven. That presumption is not displaced until the state discharges its burden of demonstrating why limits on expressive freedom are justified.

Prior restraint is a heavier and more draconian sanction than subsequent punishment. Where suspicion is warranted, charges can be laid and the criminal justice system can determine the question of innocence or guilt. Prior restraint pre-empts the freedom without a process. The Minister’s Order is a case in point; she has not yet explained her action, much less been held accountable for an Order that manifestly violates the rights of Sears and his colleagues.

It compounds the violation that the Canada Post Act provides little or no due process for anyone named in a s.43 Order. Though it takes effect in 10 days’ time, a Final Prohibitory Order can be forestalled by requesting a review is requested under s.43(2)(b). The request triggers an obligation on the Minister’s part to appoint a three-member Board of Review to conduct an inquiry (s.44(1)).

The imbalance in these provisions is worth noting. The Canada Post Act allows the Minister to move pre-emptively and remove mail from the system, at her sole discretion and with a presumption of finality. There is no symmetrical timeline requiring her to strike a Board of Review within ten days, or in any time frame at all. Mr. Sears and his colleagues have now been banned from Canada Post for almost four months and the Minister has not yet named a Board of Review, as required.

Once again, there is more. Minister Foote’s letter to Mr. Sears relies on an omnibus statement that she has reasonable grounds to believe Your Ward News includes hate propaganda and defamatory libel. In the absence of particulars, the Minister appears to have acted on an opinion that the publication is generically criminal. Though Mr. Sears has engaged his right to a review and is entitled to appear before the Review Board, it is unclear how and by what process the panel will proceed, when it is eventually named.

Your Ward News is a notorious and unwelcome piece of mail at most addresses where it is delivered. It is probable that many or most care little that it has been banned from the mail. But no one is compelled to look at unwanted mail, and disposing of it places no more than a minimal burden on unwilling recipients.

Canada Post is a service, national in scope, which provides a forum for the circulation of a wide variety of personal, commercial, political, and advocacy materials. Exercising a discretion to decide whether mail should be delivered or to discriminate against mail containing certain points of view is outside the mandate of the postal service and a violation of expressive freedom. Canada Post should not be screening mail and nor should carriers refuse to deliver material they consider objectionable. Most problematic is the Minister’s statutory power to issue peremptory orders which are censorial in nature and not subject to a process of review that is timely and fair.

The Minister’s Interim Order defies the prime minister’s declaration that Canada welcomes diverse ideas and protects the ability to express them freely. It demonstrates that whether in China or Canada the most important lesson must be taught and learned over and over. Once more, it is the freedom of those who hold unpopular and defiant views that matters; they are too often defenceless in the face of dominant, majoritarian views. It may be difficult to understand or accept but paradoxically, our freedom is theirs, and theirs is ours; the two are inseparable.

If freedom of expression is a true Canadian value, then Your Ward News cannot be banned from Canada Post. And it follows that if Your Ward News can be banned, the prime minister’s pronouncements mock a freedom that is not truly, or not yet truly, a “true Canadian value”.

JAMIE CAMERON

Advisory Board, Blogger

Professor of Constitutional Law

Osgoode Hall Law School

Jamie Cameron is a Professor of Law and has been on the full-time faculty at Osgoode Hall Law School since 1984. She holds law degrees from McGill University and Columbia University, clerked at the Supreme Court of Canada for the Hon. Justice Brian Dickson, and was on the faculty at Cornell Law School before joining Osgoode. Her teaching and research interests include constitutional and Charter law, American constitutional law, criminal law, the Charter’s fundamental freedoms, and s.7’s principles of fundamental justice. In addition to her own scholarship she has organized many conference and events, was editor-in-chief of the Osgoode Hall Law Journal (2006-9), and has been the editor and co-editor of a dozen book collections, including the annual Constitutional Cases volumes, The Charter’s Impact on the Criminal Justice System, Reflections on the Legacy of Justice Bertha Wilson, and The Charter and Criminal Justice: Twenty-Five Years Later.

Freedom of expression and the press are areas of particular interest and expertise; she has represented the CCLA on free expression and press issues at the Supreme Court of Canada and in 2011 organized a full-day symposium titled In the Public Interest: The Law and Ethics of Investigative Journalism. Professor Cameron was a Vice-President of the Canadian Civil Liberties Association for twenty years, served for ten years on the Board of Directors of the BC Civil Liberties Association, and remains on the CCLA Board of Directors today (since 1992). She completed a six-year term on the Academic Freedom & Tenure Committee of CAUT in 2012, and was a Director of the Harry Crowe Foundation (2012-2014). In 2013, she was appointed to the Ontario Review Board, the decision-making tribunal for mentally disordered criminal offenders (Part XX.1 of the Criminal Code).

What the Thought Police Don’t Want You to See

From the Summer issue of YOUR WARD NEWS. This is the satirical sort of material people like Judy Foote, Warren Kinsella and Richard Warman don’t believe you should be able to read or see or judge for yourself.

Here is my letter on behalf of CAFE to Public Services Minister Judy Foote — in charge of Canada Post. Please mail, FAX or e-mail her your own view supporting Dr. James Sears’ right to freedom of speech. Her contact information is at the bottom of this letter.

I have also included the e-mails of all MPs. You might wish to bcc them a copy of your letter.

However, no such charges have been laid against YOUR WARD NEWS, and, needless to say, no convictions registered,

Furthermore, even if there had been convictions for previous issues, each issue of the paper is different. I think Sec. 43-46 of the Act over-reach and, in this instance, deny the victims natural justice.

Canada Post must not act as a censor. The Interim Prohibitory Order violates the principles of English Common law where one is presumed INNOCENT, until PROVEN guilty. YOUR WARD NEWS is brash and satirical. It gores sacred cows and upsets many. That’s freedom of speech. Outraged people who don’t like it should chuck it in the garbage.

There should be no right in Canada not to be offended.

Hoping that you will rethink, stand up to the thought-police lobby and rescind this order, I remain,

YOUR WARD NEWS APPLIES FOR REVIEW OF PROHIBITION ORDER

Dear Minister Foote:

To ensure that there are witnesses to this correspondence, I have BCC’d
everyone involved in this matter or that should be involved, including
members of the media. I have cc’d my Member of Parliament so that he
keeps on top of you to ensure you move on the matter expeditiously. I
have also cc’d my Publisher so that you know I have his permission to act
on his and the paper’s behalf. Anyone on this correspondence may share
any part of it.

Firstly, since you have issued the Orwellian order of prohibiting me and
my Publisher from using the mail even for personal correspondences (see
attached letter from you) we must correspond with you by email.
Furthermore, I have not been served with the attached letter as of yet; it
was forwarded to me by Canada Post a few hours ago, as a courtesy. They
were kind enough to refund the almost $40K we had already paid for the
305,000 piece mailing of Your Ward News starting this week. My letter
carrier came to my door with your letter today, but refused to give it to
me, saying that you had requested a “card” be issued, and I be made to
pick it up at the post office tomorrow (delay tactic). I do not
understand why a letter signed by you on May 26, 2016, with a 10 day time
limitation on it, has still not been officially sent to me, causing me to
incur printing costs over the weekend that could have been avoided (if it
came even one business day earlier, our papers would not have gone to
press). If Canada Post had not forwarded their copy to me today, I would
still be unaware of your treacherous violation of my free speech rights.

Secondly, as Editor-In-Chief of Your Ward News, I am officially
requesting, in writing, for a Board of Review of your illegal order
blocking distribution of Your Ward News. You have violated the Charter of
Rights under multiple sections, and you should be ashamed of yourself!
You may communicate with me by email from this point forward as to when
the date of said hearing will take place. To expedite matters, you can
download a copy of the latest edition of Your Ward News here, which as you
can see is perfectly legal and harmless (please pass along information
from page 2 on my wrestling debut in Montreal) …

Thirdly, I am putting you on notice that you have libelled me and the
entire Your Ward News staff through the spreading criminal falsehoods
about us, by stating that you believe we are violating up to two sections
of the criminal code. Furthermore, you have exacerbated said libel by
stating that we are criminals of the kind so heinous that we deserve even
our personal mailing rights stripped, with no trial … guilty until we
prove ourselves innocent. I was not aware that Canada is now under
Napoleonic law.

Please advise me ASAP as to the date on which your “Board Of Review” will
take place, keeping in mind that if the Summer 2016 edition of Your Ward
News is not delivered ASAP, it will be stale-dated; and also keeping in
mind that we are now incurring daily storage costs for said order of
newspapers; and also keeping in mind that Canada Post has a monopoly on
delivery of mail to apartment mailboxes, and if we have not been convicted
of any crime, we will be seeking a court injunction to strike down Canada
Post’s monopoly, and have keys to said mail boxes issued to us so that we
may distribute said papers ourselves.

Publisher and Editor of YOUR WARD NEWS Stripped of Mail Service

TORONTO, June 6, 2016. Don’t worry if you’ve never been to North Korea or seen its comic book president Kim-Jong On. You can see the same repressive tyranny in politically correct Ottawa. Of course, there aren’t brutal work camps. Canada is more sophisticated — a soft tyranny, but a tyranny nonetheless.

The apostles of “diversity” and “inclusiveness” have no tolerance for diversity of opinion. Their latest target is a zany East End Toronto satirical paper, Your Ward News. The agitation for silencing this irreverent tabloid has been spearheaded by longtime Liberal Party backroom boy Warren Kinsella and Ottawa lawyer and champion human rights complainant Richard Warman.

The cultural Marxist elite in Ottawa have abandoned traditional procedures of English Common Law, like the quaint belief that one is INNOCENT until proven guilty and that one should not be punished in advance.

On June 6, Your Ward News Editor, Dr. James Sears was informed by Canada Post that Public Services [but not if you’re a dissident] Minister Judy Foote had slapped him with an Interim Prohibitory Order under Sec. 43.1order, essentially forbidding him or Your Ward News Metis publisher Leroy St. Germaine from using the mail for any purpose.

Dr. Sears reports: “Canada Post received a registered letter from Judy Foote, the Member of Parliament in charge of the post office, ordering them to reject delivery of our newspaper (even though they have not yet even seen a copy of it). Every level of government has tried to nail us for “hate crimes” repeatedly but their lawyers kept telling them that we are breaking no laws. Now Judy Foote says we are guilty of “criminal libel” for “publishing lies”. She did not specify which “lies”, but I am sure it is due to the “Holohoax”. We have never been charged with any crimes, let alone convicted!” The Minister, as well, said she had reason to believe Your Ward News contained material in violation of Sec. 319 of the Criminal Code (Canada’s notorious “hate law.”)

It must be emphasized that Your Ward News has never been charged much less convicted of anything.

Dr. Sears did receive his copy of the letter dated May 26 until June 6! ‘[Is this typical of Canada Post’s service?] He has 10 days to seek an appeal of this Prohibitory Order.

“The Canadian Association for Free Expression will be organizing support for Your Ward News to uphold freedom of speech, freedom of the press and full access to the monopolistic and overpriced services taxpayers pay to Canada Post,” said Paul Fromm, CAFÉ Director, from Port Credit, Ontario this afternoon.